Christmas Miracles Can Happen in Workers’ Compensation

December 23, 2016

For those of us who deal with MSAs, it’s all too common to see claims at settlement time that started out as basic and simple, then spiraled downward as a result of bad prescribing habits, increased drug use and opioid addiction.  We hope for a different ending, but can  miracles really happen?

Background

In late 2015, Tower completed a pharmacy project for a small employer in California.  In the course of the project, drug triggers were identified, physicians were contacted and claimants were challenged to settle or make changes in treatment.  As you might imagine, many of the physicians fought the request for change.  But through perseverance, and working in tandem with the client, we pushed forward.

The Story as Shared by our Client

Dear Hany,

A few weeks ago, I was looking over the  case for one of the California claimants and wanted to share the amazing results we have achieved with this gentleman.

This case involved a 26 year old man at time of injury. He sustained a minor back injury but was taking Hydrocodone, Testosterone, Celecoxib, Lyrica, Nortriptyline, Methocarbamol, and FENTANYL.  With the recommendations and assistance from the Tower MSA Partners team, as well as support from his wife, we were able to get him into a new treating physician who agreed with our goal. He was weaned off of the Fentanyl, Methocarbamol, testosterone, hydrocodone, and Celecoxib. He has even started an exercise program.  He is now both proud and happy to report how well he is doing.

The injured worker is now 51 years old and he sadly notes that he missed out on 25 years of his life and his children’s lives because he was so “drugged”.   On a positive note, however, his new treating physician has been wonderful to work with and we see only good things for this claimant.

On the financial side we have now realized a reduction in the monthly Rx spend from $1,200 per month down to $600.  The injured worker is now only taking Nortriptyline, Lyrica and Celebrex and we expect to reduce reserves next year and approach him for a settlement in June, 2018.  None of this would have been possible if not for the Rx project and your team’s expertise, guidance and follow up assistance.

While we have had great success with many of the claims that we partnered on, this particular claim was really about improving his quality of life.  So please share my THANK YOU and gratitude with your team. Let them know that what they do can save a life and that is priceless.

It’s True….Miracles Can Happen in Workers’ Compensation

What a wonderful way to end the day and begin our holiday celebrations!

From all of us at Tower MSA Partners, our best wishes for a wonderful holiday, and a safe and prosperous 2017!

CMS Announces Plans for 2017 Expansion of MSA Re-Review Process & New Policy Regarding URs in MSAs

December 22, 2016

Employers, carriers and claimants frustrated by the inability to obtain a revised CMS MSA approval after a substantial change in the claimant’s pre-settlement medical condition may find relief from CMS in 2017. Also in 2017, CMS will be issuing a policy regarding use of utilization reviews in MSA submissions. These potentially significant improvements in the CMS MSA review process are provided in a 12/21/2016 “teaser type” announcement on CMS’s website which states:

The Centers for Medicare & Medicaid Services recently revisited the task of reviewing its process for addressing requests for CMS to “re-review” otherwise approved Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) amounts. In Calendar year 2017, CMS expects to update its existing re-review process to address situations where CMS has provided an approved amount, but settlement has not occurred and the medical care that supported the approved amount has changed substantially. CMS also expects its updated process to address situations where certain states rely on Utilization Review Processes to justify proposed WCMSA amounts.

A link to the announcement may be found here.

What are the implications of this announcement from CMS?

No immediate change to CMS MSA review policies

Importantly, this is an announcement of an expected change to the MSA re-review process and the introduction of a UR policy in 2017. CMS provides no timeline beyond future announcements will occur in 2017. Consequently, there is presently no change to CMS MSA review processes or policies.

Substantial change in medical may present opportunities for revised MSA approvals

The announcement implies CMS will be expanding its MSA re-review process to cover MSA approvals where there has been a “substantial change” in the claimant’s medical condition. According to the CMS statement, this policy would only apply to cases “where settlement has not occurred.” In other words, if settlement has occurred (we assume settlement of medical) CMS will not consider a re-review.

Based upon the limited announcement it is also unclear how CMS will define “substantial change.” For example, must an actual reduction in medical care and/or prescription medication use be documented or simply a certain monetary threshold increase or decrease versus the prior MSA amount be demonstrated? This is an important question CMS will have to address as while a claimant’s medical care may not have substantially changed, the cost of the claimant’s prescription medications may have substantially reduced such as when a medication goes generic.

While the definition of “substantial change” will be the subject of a future CMS policy announcement, Tower MSA nonetheless expects this MSA Re-Review expansion to present a significant opportunity for carriers/employers and claimants to settle medical on cases which have languished unsettled for years as a result of prior high CMS MSA approvals. Reductions in a claimant’s medical costs over the years or the successful implementation of a plan to reduce a claimant’s inappropriate prescription medication regimen will yield not only a lower MSA allocation, but CMS approval of this updated MSA. The opportunity for an updated and lower MSA will facilitate claim settlements and closures.

Wait and see approach warranted regarding CMS policy on URs

The extent CMS will recognize state Utilization Review processes remains unclear based upon this announcement. Presently, CMS generally recognizes California UR determinations as a limitation on medical care in the MSA if upheld through the statutory Independent Medical Review (IMR) process as the IMR component is understood by CMS to be a final determination subject to appeal only under very limited circumstances. Other state UR processes have not been recognized as they are not considered by CMS to be final determinations. Accordingly, Tower MSA recommends taking a wait and see approach to how CMS defines its policy on URs in MSAs.

Concluding thoughts

Tower MSA applauds the potential expansion of the CMS MSA Re-Review process to encompass pre-settlement MSA approvals where there has been a substantial change in medical care as this gives carriers/employers and claimants a second-chance to settle long-standing open medical claims. We are also hopeful CMS will expand its policy on recognizing state UR process beyond California’s IMR process. We will closely monitor CMS for an announcement concerning the implementation of this policy change and provide you further analysis and recommendations.

If you have any questions regarding this CMS announcement please contact Dan Anders, Tower MSA Chief Compliance Officer, at (847) 946-2880 or Daniel.anders@towermsa.com

Workcompcentral Highlights Tower MSA CEO Rita Wilson’s “Edge” in MSP Compliance Technology

December 20, 2016

Tower MSA Partners CEO, Rita Wilson, is the subject of a recent Workcompcentral article, Focus on Tech Has Guided MSP Compliance Co. CEOs Career, highlighting how Rita’s career in building better pharmaceutical and worker’s compensation technology systems led her to develop a Medicare Secondary Payer (MSP) technology platform which electronically integrates medical and cost-containment information.

In discussing why the MSP compliance technology platform is a difference maker for Tower MSA, Workcompcentral’s Emily Brill quotes Rita:

Tower MSA has differentiated itself by building out a software system that monitors and shares claim information from beginning to end, integrating medical and cost containment information for “continuity” and to avoid “reinventing the wheel” by scrambling to get information from separate sources.

The article further quotes Rita in explaining how the platform assists Tower MSA in providing MSP compliance services to its clients:

Our technology platform is able to track claim information all the way through, through the conditional payment research process, through the intervention process, through the MSA process. What we did was integrate this information and track it with one software application that allows us to measure the progress each month, and determine when the right time to finalize the MSA.

In understanding the benefits of Rita’s focus on technology in MSP compliance, Ms. Brill spoke to Ann Schnure, the former Vice-President of Risk Management for Macy’s, and also a strong proponent of the use of technology in claims handling, who said of Rita:

Wilson’s focus on technology has always given the CEO an edge.

Learn more about Tower MSA Partners Chief Executive Officer Rita Wilson,  connect with her on LinkedIn and view her blog posts on our MSP Compliance Blog.

To learn more about how Tower MSA Partners’ technology platform can give you an “edge” in Medicare Secondary Payer Compliance please contact Rita Wilson at rita.wilson@towermsapartners.com or 888.331.4941.

CMS Technical Alert Confirms $750 Threshold for Liability, WC and No-Fault TPOC Reporting

December 13, 2016

In a 12/12/2016 Technical Alert, the Centers for Medicare and Medicaid Services (CMS) confirmed their prior policy announcements concerning the implementation of a $750 threshold for the reporting of Total Payment Obligation to the Claimant (TPOC) through the Section 111 Mandatory Insurer Reporting process. The $750 threshold for TPOC reporting in WC and No-Fault claims became effective 10/1/2016 and will become effective for liability claims effective 1/1/2017.

The mandatory reporting threshold requirements are now as follows:

Liability Insurance:
The mandatory reporting threshold for liability insurance (including self-insurance) Total Payment Obligation to the Claimant (TPOC) Amounts dated January 1, 2017 or after is changing from $1000 to $750. If the most recent TPOC Date is on or after January 1, 2017, and the cumulative TPOC Amount is greater than $750, the TPOC(s) must be reported.

Note, the liability threshold only applies to physical trauma-based liability insurance TPOC amounts. It is not applicable to TPOC amounts for alleged ingestion, implantation or exposure.

No-Fault Insurance:
The mandatory reporting threshold for no-fault insurance TPOC Amounts dated October 1, 2016 or after changed from $0 to $750. If the most recent TPOC Date is on or after October 1, 2016, and the cumulative TPOC Amount is greater than $750, the TPOC(s) must be reported.

Workers’ Compensation:
The mandatory reporting threshold for workers’ compensation TPOC Amounts dated October 1, 2016 or after changed from $300 to $750. If the most recent TPOC Date is on or after October 1, 2016, and the cumulative TPOC Amount is greater than $750, the TPOC(s) must be reported

CMS also announced that as of 1/1/2017 reporting of cumulative TPOC Amounts at or below the above defined reporting thresholds will be accepted, but are not required. In other words, submitting a TPOC amount below the mandatory reporting thresholds will no longer generate an error code by CMS.

The entire content of the official Alert from CMS can be found here.

If you have any questions regarding this Alert please contact Tower MSA Partners’ Chief Compliance Officer, Dan Anders, at Daniel.anders@towermsa.com or (847) 946-2880.

Tower MSA Partnership with American Airlines and PRIUM Yields Legacy Claim Settlements

December 8, 2016

In a widely acclaimed presentation at the recent 2016 National Workers Compensation and Disability Conference, Jennifer Saddy, Workers’ Compensation Director for American Airlines and Mark Pew, Senior Vice President of PRIUM, detailed the successful cooperation among American, PRIUM and Tower MSA to reduce pharmacy costs, litigation referrals and Medicare Set Aside costs ultimately leading to significant claim settlements.  Tower MSA is grateful to Jennifer and Mark for highlighting how Tower MSA’s Identification, Intervention and Involvement services were a key contribution to the success of this legacy claim reduction program.
 
For more information on American’s program please read the Risk & Insurance article Make a Decision and Move the Needle: American Airlines needed to take aggressive action to resolve 6,000 lingering workers’ compensation claims.

For more information on Tower MSA’s legacy claim reduction services please contact us at 888.331.4941 or info@towermsa.com.

CMS Hits ‘Reset’ Button With Workers’ Compensation Review Contractor Procedures and Request for Approval of Zero-Dollar Medicare Set-Aside Amounts

November 2, 2016

In an announcement distributed on November 1, 2016, CMS acknowledged the receipt of many inquiries from the MSP industry regarding procedural changes in the way CMS’s  Workers’ Compensation Review Contractor (WCRC) reviews proposed zero-dollar Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) amounts.  CMS further acknowledged that as a result of these inquiries, it has determined that changes had transpired without prior notification, and that effective immediately, the WCRC will utilize (the) procedures that were previously in effect, further noting that CMS continually evaluates all policy and procedures related to WCMSA reviews and will publish any pending changes when or before they go into effect.

Background

Prior to October, 2016, the Workers’ Compensation Review Contractor’s procedure with Zero Dollar WCMSAs in cases where evidence of a complete denial of the claim was handled as follows:

  1. The carrier’s complete denial would be evidenced by
    • a claim payment history documenting no payments for medical treatment and indemnity and
    • a letter from the adjuster or defense attorney confirming such full denial.
  2. The MSA must be submitted to CMS for approval PRIOR to obtaining a court-approved settlement.

When these conditions were met, the settlement would be recognized as a strict compromise and CMS would issue a determination letter staying no MSA is needed.

While CMS never published this procedure as an official policy in the WCMSA Reference Guide, the policy was exercised regularly and consistently.   As such, Tower, as well as many other MSP companies, incorporated this “policy” into its standard CMS submission procedure for Zero WCMSAs for denied claims.

The October ‘Surprise’

Beginning in October, 2016, with no notice, CMS responses for denied claims took a complete 180 degree turn in terms of the WCRC’s review process.  No longer was the carrier’s evidence of complete denial of the claim sufficient to obtain CMS’s approval of a Zero WCMSA.

When questioned regarding its rationale for this drastic change, CMS noted only that there was a ‘NEW‘ procedure being followed by the WCRC, and in order to obtain approval of a Zero WCMSA one of the following would be required:

  1. A court ruling regarding the compensability of the claim; or,
  2. Treatment records (i.e. a letter from the treating physician) which demonstrate/indicate that no further treatment for the alleged industrial condition(s) will be required.

Unfortunately for the industry, there was no advanced notice of the change in procedure, no documentation of the change and no explanation of CMS’s rationale for making such a drastic change.  We, along with everyone else in our industry, basically learned about this through development letters and undesirable dialogue with WCRC & CMS representatives.

Industry Reaction and CMS’s ‘Reset’

As expected, companies reacted immediately, contacting CMS to request answers, and seeking to determine how WCMSAs currently being reviewed would be handled.  Tower clients with cases pending with CMS were advised to wait to see if the case would be developed or if CMS would follow its original policies.  If developed, the case could be withdrawn.

In an effort to further clarify, NAMSAP (National Alliance of MSA Professionals) also intervened on behalf of its constituent members to confirm why the change was made, to ‘demand’ the courtesy of notice, and to offer its expertise to assist CMS in setting future policy to simplify the process rather than creating confusion and chaos.

As a result of the avalanche of questions, concerns and complaints, CMS has now taken a very positive step back, announcing that it will revert to its original, established procedure for reviewing Zero WCMSA for denied claims until such time as it can analyze, define policy, establish review procedures, communicate to the MSP industry and provide ample notice.

What’s Next?

With today’s announcement that the WCRC will revert to its original procedure for reviewing Zero WCMSAs for denied claims, the industry can return to its internal policies for setting settlement strategy with a clear understanding of the review process that will be executed by CMS’s review contractor when evaluating Zero WCMSAs.

As a reasonable next step, NAMSAP has offered to serve as a resource to CMS to provide industry experiences, to identify the perceived impact of the WCRC’s shift in policy, and to open dialogue regarding both our goals and the unintended consequences of CMS’s shift in review practices.  I trust CMS will consider this offer, and will engage in conversations that will lead to a seamless

Stay tuned….

Related:

Denied Claim Zero MSAs: Still Available, but Put Through the Wringer by CMS

CMS: Workers’ Compensation Medicare Set Aside Arrangements

FDA Mandates New Warnings for Opioid and Benzodiazepines

September 20, 2016

Hydrocodone Rescheduled

In a statement released on September 1, 2016 (FDA Black Box Warning), the Food and Drug Administration (FDA) announced that “after an extensive review of the latest scientific evidence, it is requiring class-wide changes to drug labeling, including patient information, to help inform health care providers and patients of the serious risks associated with the combined use of certain opioid medications and a class of central nervous system (CNS) depressant drugs called benzodiazepines.”

Background

Benzodiazepine medications are most commonly prescribed to treat anxiety and mood disorders, such as depression and insomnia. The drugs also are used to treat seizures.  According to the FDA, the number of individuals who were prescribed both opioids and benzodiazepines grew by 41 percent, or 2.5 million, between 2002 and 2014.

States submitted a petition to FDA calling for the agency to add black-box warnings about the potentially fatal combination of opioid painkillers and benzodiazepines to the drugs. The officials said prescription opioids and benzodiazepines often are used together, and data show that almost one in three unintentional overdose deaths from prescription opioids also involved benzodiazepines.

What drugs are impacted?

The agency is requiring that black box warnings, the strongest available, be added to nearly 400 products (of which more than 200 are opioid painkillers) alerting doctors and patients that combining opioids and benzodiazepines can cause extreme sleepiness, slowed breathing, coma, and death.

The FDA is warning patients and their caregivers about the serious risks of taking opioids along with benzodiazepines or other central nervous system (CNS) depressant medicines, including alcohol. Serious risks include unusual dizziness or lightheadedness, extreme sleepiness, slowed or difficult breathing, coma, and death. These risks result because both opioids and benzodiazepines impact the CNS, which controls most of the functions of the brain and body.

The bigger picture

The agency said the move is one of a number of steps the FDA is taking as part of the agency’s Opioids Action Plan, which focuses on policies aimed at reversing the prescription opioid abuse epidemic, while still providing patients in pain access to effective and appropriate pain management.  For those who may not know what’s in play or want more information about the national effort, go to TurnTheTideRx.Org to access the U.S. Surgeon General’s plans to curb the epidemic.

In responding to the announcement, FDA commissioner Robert Califf noted, “It is nothing short of a public health crisis when you see a substantial increase of avoidable overdose and death related to two widely used drug classes being taken together,” He further added, “We implore health care professionals to heed these new warnings and more carefully and thoroughly evaluate, on a patient-by-patient basis, whether the benefits of using opioids and benzodiazepines … together outweigh these serious risks.”

What does this mean to you?

In dealing with workers’ compensation claims for Class I and Class II Medicare beneficiaries, the combination of opioid pain killers and benzodiazepines is a common occurrence.  When we see it, we immediately notify the claims handler that this is a dangerous combination and certainly not intended for long term use.  For the elderly, drug combinations such as this are even more dangerous as their effects are exacerbated due to the rate at which they metabolize in an elderly person.  For those who may not be familiar, there is an excellent resource (2015 Beers Criteria for Potentially Inappropriate Medication Use in Older Adults) that focuses on commonly used drugs and the risks and potential dangers when prescribed to the elderly.  According to the guide,

“Older adults have increased sensitivity to benzodiazepines and decreased metabolism of long-acting agents; in general, all benzodiazepines increase risk of cognitive impairment, delirium, falls, fractures, and motor vehicle crashes in older adults and should be avoided”.

One of many pieces of the opioid puzzle

As stated within the “TurnTheTideRx” campaign literature, it is truly “All hands on deck” if we hope to change the course of the opioid epidemic.  It will take patient, family members, friends, and in the case of workers’ compensation claims, claims handlers, nurse case managers, employers,  carriers and even MSP compliance providers to help change prescribing habits.  While legislative, regulatory and compliance entities can assist by setting policy, it is the physician who writes the first script.  When I see that one of the largest emergency rooms in the country (One of Nation’s Largest ERs Kicks the Opioid Habit) can function without writing opioids as first line pain management for acute pain, I am convinced that a change is possible if we can engage our physicians.

We are but one piece of this very complicated puzzle, and “Big Pharma” has deep pockets.  Through education of all stakeholders, advocacy to those in positions of power and influence, and our respective collaborative efforts to optimize claims and treatment, we can make a difference in the lives of our patients.

 

Selecting the Right MSP Compliance Service Provider

June 30, 2016

Please take a moment to read Michael Stack’s article outlining qualities needed in selecting the right MSP compliance service provider.. Medicare Secondary Payer compliance is complicated and penalties can be high. There are a lot of components – Section 111 reporting, Conditional Payments, medical and pharmaceutical interventions, legal interventions, and Medicare Set Aside (MSA) preparation.

Typically these various activities are handled in silos, and time lags and errors can occur during the transfer to the next step. It’s easy to miss a data field or deadline.

In his article, Stack notes that:

“Effective MSP compliance includes a service provider that goes beyond the basics. These providers will offer services that allow members of the claim management team to focus on their job and provide information and resources to comply with Medicare regulations in workers’ compensation claims.”

Tower recognizes that Section 111, Conditional Payments, pre-MSA Triage, all interventions, and MSA preparation through CMS acceptance should occur in a continuous, unbroken process. That’s why we developed an all-inclusive MSP Automation Suite around compliance best practices. Our MSP Automation Suite drives the entire compliance process, automatically updates clients of each activity on the file, escalates medical and pharmacy issues, prompts for interventions and much more.

Claims close faster, quality and accuracy are assured and our clients enjoy smooth settlements. To learn more, contact us at info@TowerMSA.com or 888-331-4941.

 

Related posts on compliance:

Tower’s Medicare Secondary Payer (MSP) Compliance Countdown

The Year in MSP Compliance (2019)

How Do You Know Your MSP Compliance Data is Secure?

 

Opioids in the Life of the MSA… Coming Soon

June 10, 2016

In a statement released on June 7, 2016, the National Alliance of Medicare Set-Aside Professionals (NAMSAP) announced the 2nd in a series of webinars focused on opioid drugs in the Medicare Set Aside.  The release can be found at NAMSAP Presents “Opioids in the Life of the MSA” Webinar on June 21

 Background

Since the creation of NAMSAP’s Evidence Based Medicine Committee in 2014, opioid use has been in the forefront of attention within NAMSAP.  As a member of NAMSAP’s Board of Directors, I have participated in our organization’s efforts to collaborate with experts on this critical issue, to educate our members as to what is happening when opioid involved MSAs are reviewed by CMS, and now to advocate to entities outside of workers’ compensation.

Our goal is to publicize the conflict between the WCMSA review process and  CMS’s own criteria for opioid addiction triggers, prior authorization requirements and mandatory weaning.   This release explains the rationale and basis for our request: NAMSAP has called for CMS to limit opioids in the MSA review;

The easy answer

Many say the answer to the inconsistencies in the WCMSA review process as it relates to opioids is to stop submitting the MSA to CMS.  “Why feed into a broken system?” is the question I’ve heard.  If opioids aren’t appropriate for life expectancy, if addiction is imminent, if weaning is appropriate, then include this in the MSA and just don’t submit.

I absolutely endorse CMS non-submission as an option.  Where I may differ from others is that I believe it should be decided based on the facts of the case as compared to the objective and subjective nature of CMS’s review and approval process.  Unfortunately, I fear a corporate non-submit strategy is a slippery slope down the path of massaging the MSA to ‘fit’ the needs of the moment.  That is not its intent of the MSA, nor will it be left unchallenged in the long term.

What if?

I believe the prevalence of opioids in workers’ compensation indicates something is broken, but the break is much further up the food chain.  Can and should CMS ‘fix’ a problem that we have allowed and enabled over the life of the claim?  Can an excise tax on opioids fix the problem?

What if we looked at things differently?

  • What if we identify the physicians who don’t write for opioids as first line treatment for pain?
  •  What if we know and use the physicians with a proven track record of getting patients back to work
  •  What if we implement triggers to identify initial onset and changes in opioid dosage and frequency?
  • What if an increase in Morphine Equivalent Dosage was measured and addressed immediately with the physician?
  •  What if we leverage PBM reports and tools to block opioids based  on corporate designated criteria, and then execute an action plan?
  •  What if we use jurisdictional options like UR, IMR, challenging treatment to force dispute resolution and state options to allow the carrier to control physician choice where these options exist?

What if?

Working both sides

Every company has its own strategies to address the opioid issue.  Our policy at Tower is to ask every ‘what if‘ question possible as we work with clients throughout the claim and settlement process.  Whatever the answer, whether it’s physician follow up to track weaning, a formal physician peer review to challenge inappropriate treatment, or negotiating a Conditional Payment Notice to dissociate unrelated treatment, our MSP Automation Suite drives and tracks every step in the process.  We push the claim to optimize outcomes and acknowledge when the MSA is ‘ready‘ to submit.

The result of the combined efforts of all stakeholders in workers’ compensation, according the WCRI report on opioids released on June 9, 2016 is that the industry has made positive strides to address opioid issues.  Now NAMSAP is challenging CMS to modify the WCMSA review criteria so that it more closely mirrors its own Part D approvals process.

I hope you will join the webinar as we look at the policy side of the opioid issue within the MSA and that you join our advocacy efforts.

 

CMS to ‘Consider’ Expanding Its Review Process to Include Liability MSAs

In a News Alert released Thursday, June 9, 2016, the Centers for Medicare and Medicaid Services (CMS) announced is considering expanding its voluntary Medicare Set-Aside Arrangements (MSA) amount review process to include the review of proposed liability insurance (including self-insurance) and no-fault insurance MSA amounts. CMS plans to work closely with the stakeholder community to identify how best to implement this potential expansion. CMS will provide future announcements of the proposal and expects to schedule town hall  meetings later this year.

The link to the alert can be found in the ‘What’s New’ section of the Medicare Coordination of Benefits and Recovery Overview page at CMS.gov.

https://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/Coordination-of-Benefits-and-Recovery-Overview/Whats-New/Whats-New.html

Background

Signed in June, 1980,

42 U.S.C. §1395y(2)(A)) prohibits Medicare from making payment, except as provided in (B), for any item or service, to the extent that payment has been made, or can reasonably be expected to be made, under a workers’ compensation law or plan, an automobile or liability insurance policy or plan (including a self-insured plan), or no fault insurance.

42 U.S.C. §1395y(2)(B) – The Secretary may make payment under this title with respect to an item or service if a primary plan as described in Subparagraph (A) has not made or cannot reasonably be expected to make payment with respect to such item or service promptly. Any such payment shall be conditioned on reimbursement to the appropriate Trust Fund in accordance with the succeeding provisions of this subsection.

While statutory provisions included Liability cases, there were no LMSA guidelines .  As a result, actions taken to comply with the MSPA statutes in a Liability case ranged from extremely conservative to strategies that earned the LMSA environment its characterization as ‘The Wild West’.  Those who took the conservative route followed the CMS guidelines established for WCMSA.  Other strategies ranged from making the LMSA decisions based on the severity of the injury in a liability case to doing nothing.

CMS’s Review of LMSAs

With no established thresholds for CMS submission and review, those who took the conservative path followed WCMSA guidance and attempted to submit.  While certain of the CMS offices would review an LMSA, acceptance was random.  Eventually, with greater acceptance and use of the WCMSA portal, CMS began to reject LMSAs.  Submitters could make the effort to submit and obtain a letter of rejection.

While not a ‘safe harbor’, the attempt to submit was at least evidence of efforts to follow the guidelines.

CMS’s first attempt to address LMSAs

In June 2012, CMS began the process by releasing an Advanced Notice of Proposed Rulemaking (CMS-6047-ANPRM) to solicit public comment on how to implement an MSP process for liability settlements.  The ANPRM received many public comments.

On August 1, 2013, CMS sent the NPRM to the OMB for their approval.  The NPRM was never made public because the OMB did not approve it, and on 10/8/2014, this last attempt at  ‘guidance’ surrounding Liability MSAs faded into the sunset whenCMS withdrew the NPRM.   The reasons for the OMB’s rejection of the proposal were never made public.

Where are we now?

With the Liability TPOC mandatory reporting threshold of $1,000 beginning January 1, 2015 (and the voluntary threshold of $300), the BCRC now has access to more data on Liability claims than ever.  And with the announcement of the CRC (Commercial Repayment Center) in October, 2015, and its singular focus on payer recovery, the BCRC has greater resources to pursue recovery with Liability settlements.  With this combination of information and resources, it would follow that the absence of documented evidence to show that Medicare’s interests have been considered when settling a liability claim might lead to financial exposure for all stakeholders in the process…. the perfect time to introduce ‘guidance’ for the LMSA.

Tower will continue to monitor associated news on this topic and will actively participate in the TownHall Meetings regarding this topic.